Cancellation of Georgia Supreme Court Election Raises Concerns about the Role of Interim Judicial Appointments

Georgia’s Supreme Court recently decided whether the next member of that court would be elected by the state’s people or appointed by the governor. With six justices recused (and temporarily replaced by five lower court judges), Barrow v. Raffensperger let stand the Georgia Secretary of State’s cancellation of an election to fill resigning Justice Blackwell’s seat, thus allowing Gov. Brian Kemp (R) to appoint Blackwell’s successor.

Georgia’s Constitution provides that “All Justices of the Supreme Court ... shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election.” (Art. 6, § 7, Par. 1). “Vacancies shall be filled by appointment of the Governor,” (Art. 6, § 7, Par. 3) and “An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person's appointment.” (Art. 6, § 7, Par. 4)

Justice Blackwell’s current term is set to end Dec. 31, 2020, and a May 19, 2020, election was scheduled to fill the next standard six-year term for his office, which would begin on Jan. 1, 2021. However, on Feb. 26, 2020, Justice Blackwell submitted a letter to Governor Kemp resigning from his office effective Nov. 18, 2020. The Governor accepted Justice Blackwell’s resignation and announced that he would appoint a successor to the office. The Georgia Secretary of State canceled the May 19 election for the next term of Justice Blackwell’s office on the ground that Blackwell’s resignation, once it was accepted, created a vacancy that the Governor could fill by appointment, and thus no election was legally required. The Georgia Supreme Court agreed in Barrow v. Raffensperger.

However, a dissent argued the secretary of state cannot cancel an election “based on an expected or highly likely vacancy in the office” and progressive Ian Millhiser objected to this “scheme to keep Blackwell’s seat in the GOP’s hands.” Millhiser predicted in Vox that “The upshot of Barrow is likely to be that when a justice who belongs to the same party as the governor wishes to retire, they will submit a post-dated resignation similar to the one Blackwell submitted to Kemp. That will effectively give that justice’s party an extra two years to hold on to the justice’s seat before the next election takes place.”

Interesting to note that Millhiser’s characterization of the judicial seat as “in the GOP’s hands” refers to a state with ostensibly non-partisan elections. And Millhiser’s reference to “a justice who belongs to the same party as the governor” conflicts with the notion that sitting justices do not identify with a political party or that using non-partisan judicial elections, as Georgia does, can keep partisan politics from the bench.

Thanks to Arrian Ebrahimi for research assistance.

 

Wisconsin’s Coronavirus Election Focused on its Hotly Contested State Supreme Court

Wisconsin’s election last week grabbed national headlines due to partisan battles over opening polling places during a pandemic, but followers of Wisconsin politics suggest the crucial partisan divide was over the state Supreme Court. “[T]he battle over the court is the reason that the GOP defied pleas to postpone the vote: Republicans calculated that holding the election in the midst of the pandemic gave incumbent conservative justice Dan Kelly a better chance of holding his seat,” according to veteran commentator Charles Sykes writing in Politico.

The winner of last week’s election, however, was liberal challenger Judge Jill Karofsky who beat incumbent Kelly by 10%, thus reducing conservatives’ edge on the court from 5-2 to 4-3.

Although Wisconsin Supreme Court elections are nominally non-partisan, the usual Red and Blue teams routinely dominate. As Sykes puts it, “While the election of judges is technically nonpartisan, over the past two decades all pretenses have been dropped, as the races have become high-stakes proxy battles between Democrats and Republicans. Spending on the current campaign between Kelly and progressive challenger Jill Karnofsky topped $8 million and, following the pattern of recent elections, the contest was both intensely ideological and personally bitter.” And: “During the campaign, Karnofsky, who is running as an advocate of ‘social justice,’ accused Kelly of ‘running his Supreme Court campaign out of the Wisconsin GOP headquarters,” and noted that he was touting the support of President Donald Trump.”

Other than coronavirus, this Supreme Court race “in most other respects resemble[d] those before it: intensely partisan, even though its nominally nonpartisan; awash in campaign spending; and high-stakes for the ideological balance of the court,” observed Riley Vetterkind in the Wisconsin State Journal. These elections first turned boisterous in 1999, where the court saw its first million dollar election battle, and Marquette University Professor Paul Nolette considers this transformation “a reflection in part of the polarization in Wisconsin in general.”

Battles over the Wisconsin Supreme Court, and within the court, have been raging for years. Formerly, the role of chief justice fell to the court’s most senior member, but a 2015 constitutional amendment changed this selection process to election by the other justices. Democrats derided that amendment as a veiled attempt to unseat then incumbent liberal Chief Justice Shirley Abrahamson, but it nonetheless passed the legislature and a statewide ballot. I observed in a previous post that tensions heightened even further as Chief Justice Abrahamson subsequently sued the other six members of her court after losing reelection as chief under the new rules.

#scowi

  

Thanks to Arrian Ebrahimi for research assistance.

Impeach Entire Supreme Court of West Virginia?

A West Virginia House panel moved last week to impeach the state’s entire Supreme Court. “There’s a culture of entitlement and cavalier indifference and disregard for the expenditure of taxpayer money,” said House Judiciary Chairman John Shott, R-Mercer, whose committee issued articles of impeachment after 8 days of testimony.

"Elections to the state Supreme Court became formally nonpartisan in 2015. But each justice remains tied to a given party, and the current makeup of the court is 3-2 in the Democrats’ favor" reports the Washington Post. "Democratic lawmakers said the court’s political composition and the timing of the legislative [impeachment] proceedings, which have come just before the August 14 deadline to organize a special election, call into question the intentions of Gov. Jim Justice, who switched parties and became a Republican after taking office last year. Once next week’s deadline passes, he would enjoy the power to appoint any new justices, who would serve until the next election in two years."

Trial and Appellate Judges Should be Selected by Different Methods

Tailored Judicial Selection is Maine Law Professor Dmitry Bam's new article in the University of Arkansas at Little Rock Law Review.

The abstract says in part:

"approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary.

But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection."

I agree, and thank Prof. Bam for quoting Stephen J. Ware, Originalism, Balanced Legal Realism and Judicial Selection: A Case Study, Kan. J.L. & Pub. Pol'y, Spring 2013, at 165, 181: "The political/lawmaking side of judging looms larger, the higher the court. In other words, the extent to which (inevitable) judicial lawmaking allows judges to inject their political views into law rises, the higher the court. Trial judges play less of a lawmaking role than appellate judges, especially supreme court justices, simply because court systems are hierarchical and trial courts are at the bottom. The legal rulings of trial courts can be reversed, de novo, by appellate courts. In contrast, appellate courts are often the final word, as a practical matter, on issues of law."

Partisan Judicial Elections in North Carolina

North Carolina changed its trial judge elections from partisan to non-partisan in the 1990's. Now it is returning to partisan elections. Republican legislators supporting partisan elections overrode the veto of the Democratic governor.

Arkansas Bar Ass'n Proposes Big Change to Arkansas Supreme Court Selection

The Arkansas Supreme Court is currently selected in non-partisan elections. "The Arkansas Bar Association is holding a series of public forums across the state to discuss and
receive comments on a proposed Arkansas Constitutional Amendment on an appointment process
for selection of Supreme Court Justices," according to a press release by the Bar Association.

The proposal recommends “a nine-member judicial nominating commission...be formed to accept applications, interview candidates and nominate three for each vacancy on the Supreme Court.”, according to the Brennan Center, which goes on to say: the governor “would then appoint one of those candidates to the court” for a single, non-renewable, 14-year term.

FWIW, I like the single, non-renewable, 14-year term as that helps judicial independence without going to the extreme of allowing a justice to remain on the state's high court for 20 or 30 years.

2016 Montana Supreme Court Candidates Debate

Listen to the debate between Kristen Juras and Dirk Sandefur on Montana Public Radio. Whoever is elected will serve eight years as one of seven justices in Montana’s highest court.

Retired Montana Supreme Court Justice James Nelson explains that this is just one of three elections to the court this year, but in the other two Chief Justice Mike McGrath and Justice Jim Shay are running unopposed.

North Carolina Judicial Elections May Become Partisan

Elections for North Carolina appellate court judgeships have been officially nonpartisan since 2004, but AP reports that Republicans are trying again to shift them back to partisan races. The North Carolina "House tentatively agreed Thursday to legislation to require state Supreme Court and Court of Appeals candidates run with their party affiliation on the ballots."

West Virginia Judicial Elections Drop Party Labels

Gov. Earl Ray Tomblin has signed House Bill 2010, which requires the elections of justices of the West Virginia Supreme Court, circuit court judges, family court judges and magistrates to be nonpartisan and by division.

West Virginia Switches From Partisan to Non-Partisan Judicial Elections

According to Bill Raftery, West Virginia's legislature voted to "move the state to nonpartisan judicial elections at all levels" making it "the fourth state to move from partisan to nonpartisan elections in the last twenty or so years:

• Arkansas: In 2000 voters approved Amendment 80, a rewrite of the state’s Judiciary Article, which included nonpartisan elections for judges.
• Mississippi: Most state courts were moved to nonpartisan elections under the 1994 Nonpartisan Judicial Elections Act; Justice of the Peace Court races remain partisan.
• North Carolina: The state’s courts were moved to nonpartisan ballots in a piecemeal fashion: Superior (1996), District (2001), and finally the Court of Appeals and Supreme Court (2002)."

Unconstitutional Judicial Selection in Indiana?

The Indy Star reports that a federal court ruled the state law governing how judges are elected in Marion County is unconstitutional.  Apparently, the Republican and Democratic parties each nominate half of the candidates eligible to sit on the court so candidates appearing on the general election ballot are almost sure of victory.

Unfortunately, the only alternative to this system discussed in the article is the Missouri Plan, which the article uncritically calls "merit selection."

Michigan Supreme Court Nominees

As Gavel Grab writes, "Both political parties have nominated their candidates for three seats on the Michigan Supreme Court, kicking off the general election season." See more

Important North Carolina Supreme Court Races

Four of the seven seats on the North Carolina Supreme Court are up for election this year.

This passage from the News Observer gives a flavor for some non-partisan judicial elections:

 "Lewis, an N.C. Central University law school alumna who has clerked for Democrat Dan Blue when he was speaker of the N.C. House of Representatives, campaigns as a Republican in the nonpartisan race...Though judicial races are nonpartisan, the field of three will be narrowed during the primary election.  Republican Party leaders have said they are considering endorsing candidates this year in the statewide judicial races."

Read more here: http://www.newsobserver.com/2014/04/04/3759010/nc-supreme-court-races-draw-political.html#storylink=cpy